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Mt. Soledad cross ruled unconstitutional

SAN DIEGO (BP)--The Ninth U.S. Circuit Court of Appeals ruled Jan. 4 that the Mt. Soledad cross war memorial in San Diego violates the establishment clause of the U.S. Constitution.

The court did not order the 43-foot monument removed but returned the case to federal court in San Diego to determine whether the cross will be moved or if the memorial can be altered to conform to the Constitution, the San Diego Union-Tribune reported.

"The memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the establishment clause," Judge M. Margaret McKeown wrote in the 50-page brief, adding that the ruling "does not mean that the memorial could not be modified to pass constitutional muster, nor does it mean that no cross can be part of this veterans' memorial. We take no position on those issues."

For two decades, the memorial has been at the center of a legal debate, with opponents saying the cross amounts to the government favoring the Christian religion, since the landmark is on public land and includes a cross.

In 1999, plaques with the names and photographs of veterans were installed around the cross, but McKeown, a Clinton appointee, wrote, "The history and absolute dominance of the cross are not mitigated by the belated efforts to add less significant secular elements to the memorial."

In 2008, U.S. District Judge Larry Burns in San Diego ruled that the cross is one element in a larger war memorial that honors the service of all veterans, but his decision was reversed by the Ninth Circuit.

"The Ninth Circuit's opinion almost completely disregards the U.S. Supreme Court's decision in Salazar v. Buono, in which the court said that the Mojave Desert Veterans Memorial should stay," Kelly Shackelford, president of Liberty Institute, said in a statement. "This ruling is a slap in the face to our nation's veterans, and we hope that the Justice Department will ask the U.S. Supreme Court to set the matter straight."

Liberty Institute represented The American Legion, the nation's largest veterans' organization, in the case and noted that this is part of a trend to remove crosses on federal land.

"I am asking Attorney General Eric Holder to appeal this regrettable decision to the Supreme Court," said Jimmie Foster, national commander of The American Legion. "The sanctity of this cross is about the right to honor our nation's veterans in a manner which the overwhelming majority supports. The American Legion strongly believes the public has a right to protect its memorials."

David Blair-Loy, legal director for the American Civil Liberties Union of San Diego, said the Ninth Circuit's decision validated core legal ideas.

"This is about fundamental principles and freedom of religion," Blair-Loy said, according to the Union-Tribune. "Our view has always been the best way to protect freedom of religion is to keep government out of religion."

The American Center for Law and Justice filed an amicus brief in the Mt. Soledad case on behalf of 25 members of Congress in support of the memorial, and Jay Sekulow, the ACLJ's chief counsel, expressed disappointment in the Ninth Circuit's ruling.

"This flawed decision not only strikes at the heart of honoring our military veterans, it reaches a faulty conclusion that this iconic memorial -- part of the historic landscape of San Diego -- is unconstitutional," Sekulow said.

"We believe the appeals court got this decision wrong and we look forward to the case going to the Supreme Court where we're confident this decision will be overturned. We're already preparing for the next chapter in this decades-old challenge and plan to file an amicus brief at the high court in support of the constitutionality of the memorial on behalf of members of Congress."

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